‘Orphan works’ compromise fails to deliver

The compromise text of the proposed orphan works directive is finally out. If nothing unexpected happens, this text should be what gets adopted later this year, what needs to be transposed into national legislation within 2 years from then, and what cultural heritage institutions that are confronted with hostage works need to deal with for the next decade or two. This text also represents the first finished legislative project that is part of the European Commissions Digital Agenda, which attempts to make Europe ‘fit for the digital age’.

Given all of the above, it is unfortunate that the text also is a legislative train wreck that fails to make any substantial improvements to the situation in which memory institutions engaged in digitization efforts find themselves. The compromise text of the proposed directive (‘compromise’ refers to a compromise between the three EU legislative bodies the Commission, the Council and the Parliament, not a compromise between the many stakeholders affected by this legislation) has essentially abandoned the initial purpose of the proposed directive. That purpose was to ensure that the public gains access to those works that are held hostage by the copyright legislation that has failed to keep up with social and technological change. Instead, the proposed directive has morphed into a twisted attempt to protect the ideology underpinning 20th century copyright legislation against the effects of the problems created by the rigidity of this very ideology.The compromise text reaffirms the principle that no matter what situation we find ourselves in, we need to be guided by the ideology that it is the exclusive right of authors to determine what society can or cannot do with the bits and pieces of cultural production that make up our shared culture. The proposed orphan works directive re-affirms this principle even in the situation where the limitation of this approach is most visible:

No one benefits from the fact that works protected by copyright for which a rights holder cannot be located cannot legally be used: This is true for the authors who have created these works, the memory institutions that have invested considerable resources into collecting and preserving these works, and the general public that is funding these efforts and wants access to these works. Legislation that would enable memory institutions to make use of these works without having to jump through complex hoops for the simple sake of pledging allegiance to the principles of 20th century copyright law would benefit all of these stakeholders: authors would see increased access to their works (and would be provided with the ability to re-claim control over their works if they so desire), memory institutions would be free to focus their resources on their core mission of providing public access to culture, and the public would have access to a much wider spectrum of works and could build upon them.

Looking at the compromise proposal, none of this is very likely to happen on a substantial scale.

There are several positive aspects of the compromise proposal. Looking back at the COMMUNIA policy paper that was published in reaction to the original Commission proposal, and at our first guess on the compromise text, we can conclude that the co-legislators have agreed on a text that solves most of the technical problems that we pointed out: the directive now also applies to unpublished works, it can be applied to ‘partial orphans’, and it no longer ties the use of specific types of works to specific types of memory organizations.

Also on the plus-side is the fact that in order to allow memory institutions to use orphan works, the directive creates a new Europe-wide exception to copyright. This approach is interesting insofar as it hints to a new thinking about copyright policy making in the EU. In doing so, it could free itself from the restrictions derived from the limited list of exceptions to copyright that was introduced by the 2001 copyright directive.

But this is where the positive parts of the compromise end. At the core of the compromise are four substantial shortcomings that – taken together – render the directive effectively useless. These shortcomings affect the way hostage works are identified as being ‘orphan’ works, the way reappearing rights holders have to be compensated, the way these works can be used, and the group of beneficiaries that can actually use them.

With regard to the identification of ‘orphan works’, the directive requires that ‘a diligent search is carried out in good faith for each work‘ by the memory organization attempting to use such a work. Memory organizations have repeatedly pointed out that conducting a diligent search for each work makes making available ‘orphans‘ prohibitively expensive and will likely mean that the directive will not be used in mass digitization projects.Regardless of these complaints by the very organizations that are the intended beneficiaries of the directive, this issue has not only failed to be addressed, but has even been made even worse. The compromise text adds the requirement that the diligent search is carried out ‘in good faith‘. This language introduces a second layer to the legal test that an organization making use of the directive could potentially fail to pass.

This has the effect of both increasing the risk for memory institutions and also insulting them by insinuating that they exist to purposely harm rights holders (The same is true for the newly inserted recital 16a that reminds the memory institutions of the obvious fact that they risk remedial action under copyright if they wrongfully identify a work as being ‘orphan’ work).

Therefore, instead of addressing the very real concerns over the usefulness of the directive, the compromise text creates even more legal uncertainty for those memory institutions who are intended as the beneficiaries of the directive.

This uncertainty is made worse by the introduction of a requirement to compensate rights holders for past uses of their works if the rights holders reappear and claim their works (thus ending the works’ ‘orphan’ status). The initial Commission proposal did not contain such a requirement (it only stated that reappearing rights holders have a right of compensation for future uses), which provided reduced financial risks for organizations making available ‘orphan‘ works over the current status quo.The introduction of the requirement for retroactive compensation means that even after an organization has invested into a diligent search, it continues to face financial risks, thus reducing the appeal of the directive for its intended beneficiaries even further.

Third, the compromise text of the directive does not change the limited list of permitted uses of the Commission proposal. According to the directive, memory institutions may use orphans ‘by making them available‘ and ‘by acts of reproduction […] for the purposes of digitization, making available, indexing, cataloging, preservation or restoration‘.This list of allowed uses is problematic in two ways. First, it refers to uses that are not covered by the copyright directive (cataloging and indexing), which can be seen as a subtle attempt to expand the reach of copyright protection. Second, a limited list of uses is fundamentally shortsighted in a situation of rapid technological change. In order to provide some room for memory organizations to adapt to new technologies, the directive should allow the beneficiaries to use ‘orphan’ works for the purpose of carrying out their public interest mission without creating an inherently incomplete list of only specifically-sanctioned uses at the time of publication of the directive.

Finally, the compromise text contains the same limited list of beneficiaries as in the Commission proposal: The directive only allows uses of ‘orphan‘ works by ‘publicly accessible libraries, educational establishments or museums, as well as archives, film or audio heritage institutions and public service broadcasting organizations‘ in the context of their public interest missions. As we have argued in our policy paper, this is far too limited in the context of how cultural works are currently being accessed:

[The beneficiaries named in the directive] are not the only sources of access to our shared culture and heritage. It is COMMUNIA’s position that the group of users who may benefit from the orphan works directive should be widened potentially to include everyone. The targeted group of end users should include individual end users and non-profit initiatives like Wikipedia, which would currently not benefit from the proposed directive. […]

In this regard, the proposed directive falls short of recognizing the changes of how we access and deal with cultural heritage. Europeans are increasingly accessing and using cultural heritage information without mediation by the formal institutions that the proposed directive targets. This development will likely continue in the future and any legislative proposal that does not take these changing realities into account will only worsen the situation by cementing the status quo-ante.

In addition, this limitation also means that it will be very difficult for memory organizations to form public-private partnerships (PPPs) to digitize ‘orphan‘ works. The main incentive for private parties engaging in PPPs with memory organizations is that they can make the digitized works available through their own services. As long as commercial partners are not entitled to use ‘orphan‘ works, such partnerships will need to steer around digitizing ‘orphan‘ works.

All of this means that the compromise proposal will do very little to address the problem it is intended to solve. The memory institutions made this clear when Informations sans Frontières listed 6 problems that needed to be fixed before they could recommend approving the directive. These include three of the four problems outlined above which are still present in the compromise text. Given this the memory organizations would be well advised to make it clear that the compromise does not help them in a significant way.

However, it is not only the memory organizations who should be concerned. This piece of legislation is also a defeat for the Commission. In their quest to adapt copyright to the digital age, they have – under substantial pressure from rights holders – failed to arrive at a legislative intervention that delivers on this goal. At the same time when the Commission is aggressively pushing for an open data strategy that calls open data ‘the new gold that needs to be made available for re-use by anyone‘, it has produced a directive that effectively keeps large parts of 20th century cultural data locked away in the archives and basements of memory institutions.

The orphan works directive presented an important opportunity to broaden the Public Domain by including those works that have been abandoned by their rights holders. What we have received instead is a directive reaffirming the primacy of copyright over the interests of the public and of society at large.

Ultimately, the limitations of the compromise text points us to the need for real reform in the way society grants protection to the creators of cultural and scientific works. We should only award exclusive rights to those creators who want them and who will use them responsibly by not abandoning their works. This can be achieved in a relatively straightforward way by requiring that creators register those works that they want to have protected by exclusive rights and that they renew this registration periodically. Implementing this requires a willingness of all stakeholders to revisit the principles underpinning the current regime of copyright protection. Unfortunately, the ‘orphan‘ works compromise shows us that this willingness does not yet exist.